Flint Water Crisis Class Action Litigation

In a second significant and favorable ruling for Flint, Michigan plaintiffs for the year, on April 18, 2019 the Honorable Linda V. Parker of the Unites States District Court, Eastern District of Michigan, issued an opinion and order, denying the EPA’s motion to dismiss Burgess v. United States of America, Case No. 4:17-cv-11218-LVP-RSW. Jan Burgess and more than 5,000 Flint residents sued the EPA for its role in causing the Flint Water Crisis. (This case is running parallel to Cohen Milstein's Flint Water Crisis Class Action Litigation.)

In her ruling, Judge Parker condemned the EPA for its “failure to warn Flint residents of the severe health risks the City’s water supply posed to them…the EPA was well aware that the Flint River was highly corrosive and posed a significant danger of lead leaching out of the City’s lead-based service lines at alarming rates into residents homes [and] was well aware of the health risks posed by lead exposure, particularly to children and pregnant women.”

Earlier in the month, on April 1, 2019, the Honorable Judith E. Levy, for the United States District Court, Eastern District of Michigan, granted in part plaintiffs’ motion for leave to file a fourth amended complaint in relation to Carthan. v. Snyder, Case No. 5:16-cv-10444 and reinstate Former Michigan Governor Rick Snyder, as a defendant in the class action lawsuit brought by victims of the Flint Water Crisis. Governor Snyder, as well as other government defendants, will now face charges of violating Flint citizens’ “right to bodily integrity” as protected under the 14th Amendment.

“[P]laintiffs plausibly state that the Governor acted indifferently to the risk of harm they faced, demonstrating a callous disregard for their right to bodily integrity. This indifference manifested itself in two ways. Initially, the Governor was indifferent because instead of mitigating the risk of harm caused by the contaminated water, he covered it up. In private, he worried about the need to return Flint to DWSD water and the political implications of the crisis. But in public, he denied all knowledge, despite being aware of the developing crisis.

As a result, plaintiffs were lured into a false sense of security. They could have taken protective measures, if only they had known what the Governor knew. Instead, the Governor misled them into assuming that nothing was wrong. Governor Snyder’s administration even encouraged them to continue to drink and bathe in the water.”

The amended complaint included allegations questioning how Governor Snyder and his administration responded to the unfolding crisis and that Snyder and his staff were aware of the health risks associated with the city’s transition to Flint River water, including the risk of Legionnaires’ disease, for months before an official announcement was made and that they concealed this information from the public. As Governor Snyder’s Chief of Staff wrote in an email, “the people there [in Flint] just seem to be getting a raw deal from the city, particularly in terms of the information they are getting.” Yet Snyder and his administration waited months to declare a state of emergency in Flint, depriving citizens of important resources.

The victims allege that officials from the state of Michigan, the City of Flint, Genesee County and two private engineering firms created the public health crisis, having made calculated decisions that “deliberately exposed” residents of Flint to the harmful health effects of lead.

Judge Levy’s ruling clears the way for the Flint Water Crisis Class Action to proceed against government officials and private contractors.

Case Background

In 2014, in an effort to save money, the City of Flint switched its water supply to water drawn from the highly contaminated Flint River. That change set into motion a series of events that ended with many of the City’s nearly 8,000 small children permanently harmed by lead poisoning, and over 30,000 of the City’s many housing units rendered nearly worthless because of corroded, unsafe pipes and appliances.

On March 31, 2016, Cohen Milstein filed an initial lawsuit in federal court on behalf of Flint residents against two corporations and multiple government entities involved in the Flint water and lead crisis. According to the complaint, engineering firms Lockwood, Andrews & Newnam (LAN) and Veolia, both major professional companies with experience in water systems, gave the City disastrously bad advice about the switch to Flint River water.

When Flint’s citizens complained about the new water’s bad smell, color, and taste—and later, when the City suffered an outbreak of deadly Legionnaires’ disease—the engineering companies failed to identify corroding pipes as the root cause of the City’s problems. Had they taken even the most basic steps required of professional engineers, they would have discovered that Flint River water was eight times more corrosive than the City’s previous water source, and they would have taken steps to prevent the leaching of dangerous lead into residents’ water supply.

Instead, LAN and Veolia made the problem worse. They recommended that the City double the water system’s dose of ferric chloride—a highly acidic chemical that only compounded the City’s corrosion problem. Rather than anticipating and ameliorating the water’s increased corrosivity, LAN and Veolia did nothing to prevent added ferric chloride from further eating away at Flint’s lead pipes.

Subsequent class action complaints were later filed against LAN, Veolia, Governor Rick Snyder, the State of Michigan, the City of Flint, and city personnel in their individual and official capacities. The complaints allege that, as a result, lead concentrations in Flint water reached astonishingly high levels—in one case, as much as 880 times the EPA’s legal limit. The toxic lead made its way into residents’ water, and then their blood. Lead poisoning is known to cause serious damage to children’s central and peripheral nervous systems, stunt growth, reduce IQ, and cause serious behavioral problems. The effects of these symptoms can reverberate across a child’s entire lifespan.

Flint’s corrosive water has also caused devastating damages to residents’ property. The water has permanently corroded pipes and appliances connected to the Flint water system—leaving many residents in a vicious catch-22. Because of the damages to their pipes caused by LAN’s and Veolia’s negligence, the homes of Flint residents are no longer valuable enough to serve as collateral for the loans they need to fix their pipes and purchase new, safe appliances. Instead, the residents are stuck in dangerous homes, unable to afford the price of safety.

Relying on new information that emerged during class action plaintiffs’ ongoing investigation and in the related criminal cases, the amended complaint seeks to have Governor Rick Snyder and other senior officials reinstated as defendants after Judge Judith E. Levy of the United States District Court, Eastern District of Michigan granted in part and denied in part the defendant’s motion to dismiss on August 1, 2018.

While Judge Levy’s ruling cleared the way for the Flint Water Crisis Class Action to proceed against government officials and private contractors, it also narrowed certain elements of the suit, including dismissing allegations against Governor Rick Snyder, with leave to amend the complaint.

In her August 1, 2018 opinion Judge Levy stated that certain “government officials disregarded the risk the water posed, denied the increasingly clear threat the public faced, protected themselves with bottled water, and rejected solutions that would have ended this crisis sooner. On October 5, 2018, relying on new information that emerged during class action plaintiffs’ ongoing investigation and in the related criminal cases, Cohen Milstein and co-counsel, filed an amended complaint on behalf of Flint Water Crisis plaintiffs detailing new allegations concerning the role of some of Michigan’s highest state officials, including Governor Rick Snyder, in the ongoing public health crisis involving the Flint’s water. The amended complaint bolsters claims that Flint’s African American residents were denied equal protection under the law.

The October 5, 2018 amended complaint, Carthan. v. Snyder, Case No. 5:16-cv-10444, includes allegations questioning how Governor Snyder and his administration responded to the unfolding crisis, including that Snyder and his staff were aware of the health risks associated with the city’s transition to Flint River water, including the risk of Legionnaires’ disease, for months before an official announcement was made and that they concealed this information from the public. As Governor Snyder’s Chief of Staff wrote in an email, “the people there [in Flint] just seem to be getting a raw deal from the city, particularly in terms of the information they are getting.” Yet Snyder and his administration waited months to declare a state of emergency in Flint, depriving citizens of important resources.

The October 5, 2018 complaint also alleges that senior officials at the Michigan Department of Environmental Quality (“DEQ”), the state agency responsible for overseeing the supply of drinking water statewide, failed to comply with state and federal laws, as well as departmental policies. For example, DEQ allegedly granted a fraudulent administrative consent order in an effort to allow Flint to borrow millions of dollars despite being in receivership. The complaint further details how DEQ officials have failed to put in place a satisfactory non-discrimination policy despite being ordered to do so by the U.S. Environmental Protection Agency more than a year ago. This failure denied Flint’s African American citizens a fulsome procedure for challenging DEQ’s discriminatory conduct.

The victims allege that officials from the state of Michigan, the city of Flint, Genesee County and two private engineering firms created the public health crisis, having made calculated decisions that “deliberately exposed” residents of Flint to the harmful health effects of lead, while providing superior water to residents of an affluent, largely white community nearby.

The lawsuit seeks to hold these officials and engineering firms accountable. In addition to financial relief, plaintiffs are asking the Court to require repairs to private property, the establishment of medical monitoring and appointment of a monitor who will assist in the development of other remedial plans including early education and intervention programs.

The consolidated class action is named: In re Flint Water Cases, Case No. 16-cv-10444, U.S. District Court, Eastern District of Michigan

For More Information

For press inquiries about the Flint Water Litigation, please contact Desmond Lee at 646.517.1826 or Brian Levin at 646.200.5331 or cohenmilstein@berlinrosen.com. For more information about joining the Flint Water Litigation, please contact Ted Leopold or Emmy Levens at Cohen Milstein at 561.515.1400.